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Archive for July, 2009

I’m on vacation until the end of next week, so the posts here at CAB may be sparse and short over the next 10 days or so, but here is a short news item that caught my eye.  According to this article from the Hindu Times, the Indian Parliament is considering a bill that would allow U.S.-style class actions in securities fraud cases in India.

http://www.hindu.com/thehindu/holnus/006200907261411.htm

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It’s not too late to register for Economic Crisis Litigation Update CLE, to be held at the Colorado Bar Association offices in Denver.  Here are the details. 

 

There are 5 easy ways to register. Download the registration form at

1. FAX the form to the Colorado Bar Association CLE offices at (303) 860-0624

2. MAIL the form to CBA-CLE at 1900 Grant Street, Suite 300, Denver, CO 80203

3. CALL us! (303) 860-0608, or toll-free (888) 860-2531

4. REGISTER ONLINE at:

5. OR REGISTER FOR THE LIVE WEBCAST AT:

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CAN’T ATTEND THE PROGRAM? ORDER YOUR HOMESTUDY ONLINE TODAY!

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We look forward to providing you with the best information and service available,

to meet all of your continuing legal education needs. Please contact us at cle@cobar.org

if you do not wish to receive e-mail correspondence regarding CBA-CLE seminars.

Our mailing address is 1900 Grant Street, Suite 300, Denver, CO 80203

http://www.cobar.org/cle/datadetail.cfm?ProductID=LI072410Dhttp://www.cobar.org/calendar/eventdetail.cfm?EventID=LI072410Whttp://www.cobar.org/cle/photos/eventpdfs/LI072410L.pdf and:http://www.cobar.org/calendar/eventdetail.cfm?EventID=LI072410Lhttp://www.cobar.org/calendar/eventdetail.cfm?EventID=LI072410Lhttp://www.cobar.org/calendar/eventdetail.cfm?EventID=LI072410L Denver, Colorado Springs and Grand Junction

 

ECONOMIC CRISIS LITIGATION UPDATE: Subprime Mortgages, Shareholder Suits, ERISA, Class Actions and More!

Co-sponsored by the Securities Law and Class Actions Subsections of the CBA Litigation Section

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LIVE PROGRAM: July 24, 2009

At the CBA-CLE Classroom, 1900 Grant Street, Suite 300, Denver, CO

LIVE WEBCAST: July 24, 2009

Direct to your desktop!

VIDEO REPLAYS: August 14, 2009

 For additional information on this course or to view the program brochure go to:

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Program Highlights

What You Will Learn:

 – Subprime Securities Litigation: Important Trends and Developments in Securities Litigation and Derivative Suits

- ERISA Class Actions

- Consumer Class Actions and Other Hot Litigation Issues Driven by the Economic Crisis

Who Should Attend:

- Litigators

- Securities Law Attorneys

- Business Law Attorneys

- Industry Professionals

- Anyone Who Needs Up-to-date, Expert Guidance on the Hottest Litigation Issues Spawned by the Economic Downturn! 

Program Description

Litigators! Securities lawyers! Business lawyers! Here is the program you have been waiting for!

Since the economic crisis began gripping our country, there has been much discussion in the media about the litigation that is resulting from the economic downturn. But how do you separate the spin and hyperbole from the real information you and your clients need? What are the issues that are really driving the litigation that is resulting from the stock and real estate market crashes? What are the holdings in recently decided cases such as Stoneridge and In re IPO Securities Litigation and what do these holdings mean for you and your clients. 

Attend this timely, practical program and find out!

The program’s experienced instructors hail from both the plaintiff and defense bars, giving you balanced, valuable insight to guide you in this emerging area of the law. From real world guidance on how to prove (or defend against) causation in securities cases, to ERISA issues that can start (or end) a lawsuit, to the real scoop on the facts that can sustain (or not sustain) a mortgage fraud lawsuit, you will get valuable knowledge, tips, and skills you can put to use right away in your practice.

Whether you are plaintiff’s counsel or defense counsel, you need to be able to evaluate the merits of a case that stems from the fallout from the economic meltdown. Is it a real case, with facts that can prove meritorious or not? Find out from the attorneys who are on the cutting edge in this hot area of law…

Register for this timely, practical program today!

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Agenda

8:30 AM – 9:00 AM

Registration

9:00 AM – 9:05 AM – Welcome and Introduction

Extended by Paul Karlsgodt, Esq., Program Chair

9:05 AM – 10:05 AM – Subprime Securities Litigation

Learn about the trends in securities class actions and derivative suits that arise from subprime investments! Topics include:

- The impact of Stoneridge, In re IPO Securities Litigation, and other developments in securities class actions

- Trends in securities class action verdicts, judgments, and settlements

- Practical considerations in securities litigation given the economic crisis (e.g., the difficulty in proving causation given the general economic downturn)

Presented by Jeffrey W. Lawrence, Esq., Holly Stein Sollod, Esq. and Cliff Stricklin, Esq.

10:10 AM – 10:40 AM – ERISA Class Actions Relating to Subprime Asset Investments by Retirement Plans (Part 1 of 2)

 After Stoneridge, is ERISA litigation overtaking securities litigation as the vehicle of choice for seeking redress of alleged losses caused by subprime investments? Learn the answers to these important questions:

- What makes ERISA litigation a desirable alternative to a securities claim?

- What are the trends in ERISA litigation?

- What do I need to know about the LaRue decision and what is its impact on ERISA litigation so far?

Presented by Dirk W. de Roos, Esq. and Todd J. McNamara, Esq.

10:40 AM – 10:50 AM – Break (10 minutes) 

10:50 AM – 11:20 AM – ERISA Class Actions Relating to Subprime Asset Investments by Retirement Plans (Part 2 of 2)

11:25 AM – 12:25 PM- Developments in Consumer Class Actions and Other Subprime-related Litigation

Is the economic crisis really causing the flood of consumer class action litigation that some predicted? Find out about:

 – Class actions and individual claims under the Truth In Lending Act (TILA)

- Consumer class actions and other claims for mortgage fraud and related litigation

- What is the impact of the poor economy on class action litigation?

Presented by Lila M. Bateman, Esq. and Frances Johnson, Esq.

12:25 PM – Adjourn

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Faculty

Paul Karlsgodt, Esq., Program Chair

Baker & Hostetler, LLP

Denver, CO

 

Lila M. Bateman, Esq.

Morrison & Foerster, LLP

Denver, CO

 

Frances Johnson, Esq.

The Carey Law Firm

Colorado Springs, CO

 

Dirk W. de Roos, Esq.

Faegre & Benson, LLP

Denver, CO

 

Jeffrey W. Lawrence, Esq.

Coughlin Stoia Geller Rudman & Robbins, LLP

San Francisco, CA

 

Todd J. McNamara, Esq.

McNamara, Roseman, Martínez & Kazmierski, LLP

Denver, CO

 

Holly Stein Sollod, Esq.

Holland & Hart, LLP

Denver, CO

 

Cliff Stricklin, Esq.

Holland & Hart, LLP

Denver, CO

 

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CREDITS:

Submitted for 4 General CLE Credits

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TUITION:

- Non-member $199.00

- CBA Member $179.00

- Litigation Section $149.00

- Business Law Section $149.00

- New Lawyer (2 yrs) $129.00

- YLD Member $129

- Legal Support Staff $129.00

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REGISTRATION:

For course details or to register online, go to:

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As reported in this recent Financial Times article, the Stanford Law School Securities Class Action Clearinghouse and Cornerstone Research have issued a Mid-Year Report on trends in securities class action filings.  Among the report’s key findings are that U.S. securities class actions against foreign companies are on the rise and that the financial industry continues to be the target of “unprecedented litigation activity,” trends that are not particularly surprising in the wake of the global financial crisis.  Here is a link to the full report available from the Clearinghouse website.

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Not two full weeks after I invoked the “juridical link” doctrine as an example of one of the most obscure legal concepts I could think of  (see July 6, 2009 entry, In Defense of the Big Law Blog), a North Carolina Court has apparently applied the doctrine in allowing a class action to be brought against related defendants with whom the named plaintiff had no direct claim.  Mack Sperling of The North Carolina Business Litigation Report has a thorough synopsis of the case, Clark v. Alan Vester Auto Group, Inc. 

The juridical link doctrine developed as a rule allowing joinder of claims against related governmental actors, but plaintiffs sometimes try to invoke the doctrine as a mechanism to avoid the necessity of establishing separate standing to sue each of several defendants named in a class action.  Under the unique circumstances in Clark, where a group of defendants had the same owner, management, and accountant and shared a common computer system and common policies, employees, officers, and sales processes, among other common features, the argument was successful.  Other courts have declined to recognize the juridical link doctrine as an exception to standing, especially where there is no allegation of a conspiracy or concerted conduct between the defendants. 

For more discussion of the history and courts’ treatment of the juridical link doctrine as an exception to standing, see Fernandez v. Takata Seat Belts, Inc.,  108 P.3d 917 (Az. 2005).

For a list of words that rhyme with “juridical” see this link.

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In an opinion entered in April in Rodriguez v. West Publishing Corp., the U.S. Court of Appeals for the Ninth Circuit stated its disapproval of the practice of plaintiffs’ counsel entering into incentive agreements with putative class representatives, which required their attorneys to seek successively higher payment in the event of class settlements in successively higher dollar amounts.  The court described the problem as follows:

Incentive awards are fairly typical in class action cases. See 4 William B. Rubenstein et al., Newberg on Class Actions§ 11:38 (4th ed. 2008); Theodore Eisenberg & Geoffrey P. Miller, Incentive Awards to Class Action Plaintiffs:  An Empirical Study, 53 U.C.L.A. L. Rev. 1303 (2006) (finding twenty-eight percent of settled class actions between 1993 and 2002 included an incentive award to class representatives). Such awards are discretionary, see In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 463 (9th Cir. 2000), and are intended to compensate class representatives for work done on behalf of the class, to make up for financial or reputational risk undertaken in bringing the action, and, sometimes, to recognize their willingness to act as a private attorney general. Awards are generally sought after a settlement or verdict has been achieved.

The incentive agreements entered into as part of the initial retention of counsel in this case, however, are quite different. Although they only bound counsel to apply for an award, thus leaving the decision whether actually to make one to the district judge, these agreements tied the promised request to the ultimate recovery and in so doing, put class counsel and the contracting class representatives into a conflict position from day one.

The court went on to approve the settlement, which called for the creation of a $49 million settlement fund to compensate a class consisting of aspiring lawyers who paid for  BAR/BRI bar review courses from August 1997 through July 31, 2006.  The court reasoned that although the incentive agreements were improper, there were two settlement class representatives who had not been parties to the agreements.  However, the court remanded for a reconsideration of the attorneys fees to be awarded to the class counsel who had negotiated the incentive agreements and the possibility of an award to counsel for objectors who successfully objected to the incentive fee agreements.

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A Securities Docket post today tipped me off to this Reuters article discussing the enactment of “Italy’s first law establishing class actions.”  The law will take effect January 2010 and will apply only to conduct occuring after the law’s effective date.  At first, I wasn’t sure whether this April 1, 2008, ClassActionBlawg article announcing Italy’s first class action law was just very prescient or an April fool’s joke, but according to the Reuters article, “The law is part of the so-called development package promoted by Development Minister Claudio Scajola, which has been before parliament for nearly a year.”

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Economist David Gulley, Ph.D., of Navigant Consulting, has authored an informative white paper entitled Recent Trends in Rule 23 Class Certification Expert Analysis.  Dr. Gulley’s article explores the expanding role of experts and increased scrutiny over expert opinion testimony in class certification proceedings in light of recent federal appellate decisions placing renewed emphasis on the rigorous analysis standard.  See the Second Circuit’s opinion in In re IPO Securities Litigation and the Third Circuit’s opinion in In re Hydrogen Peroxide Antitrust Litigation.  The paper is a great resource for both class action attorneys and experts who are asked to testify in class certification proceedings.

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